Balbir Singh vs Gurdip Singh -Accused.

V.S. Aggarwal, J.

The present revision petition has been filed by Balbir Singh petitioner directed against the order passed by the Sub Divisional Judicial Magistrate, Baba Bakala dated 6.12.1995. By virtue of the impugned order, the respondent discharged the accused.

The relevant facts are that petitioner had filed a complaint against the respondent. He is alleged to have purchased 16 marlas of land from Mohinder Kaur. After constructing the boundary wall, he started living in the said property. It is within village Butala. On 14.3.1994 at 10.00 P.M. the respondents are alleged to have entered his house. They broke open the door of the house. The petitioner was able to identify the respondents with the torch light. Respondent No. 1 Gurdip Singh was the Sarpanch. He was armed with a gun. Jagir Singh was armed with a gandasi, Dpinder Singh was armed with a dang, Kundan Singh was armed with Sabbal, Bhola Singh was armed with a dang while accused Surjit Singh, Bant Singh and Manga Singh were armed with Kahies. It was at the exhorting of Jagir Singh, Gurdip Singh and Dpinder Singh that other respondents picked up their arms. They had shouted that petitioner should be taught a lesson for not casting vote in favour of their party. They removed the bricks of the boundary wall and threatened that they will do away with the petitioner. The possession was delivered to certain respondents namely Bhola Singh, Manga Singh, Gurmail Kaur and Sheero.

The grievance of the petitioner was that he reported the matter to the Police but no action was taken. As a result of which he moved the criminal complaint. After recording the preliminary evidence, the respondents were summoned as accused. After the respondents appeared, they were tried and evidence had been produced. The learned Sub Divisional Judicial Magistrate held that the evidence on the record was not sufficient to result in conviction of the respondents. Accordingly, they were discharged.

It is not being disputed at either end that when a complaint is filed and preliminary evidence is recorded, the learned Judicial Magistrate has to apply his mind and arrive at a conclusion if prima facie case is drawn or not. If no prima facie case is drawn, then there are no reasonable grounds to proceed against the accused. However, if the learned court finds that there are reasonable grounds to proceed, in that event the procedure has to be followed. In the present case it was being followed pertaining to trial of warrants cases by magistrate under Chapter XIX of the Code of Criminal Procedure. It was a case instituted other than on a police report. Section 245 Cr.P.C. reads :

"245. When accused shall be discharged. (1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this Section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."

Perusal of Section 245 Cr.P.C. undoubtedly shows that if the Magistrate considers that no case is made out which if unrebutted, would warrant the conviction of the respondents, then they are liable to be discharged. It is this finding of the learned trial court which is the subject matter of controversy.

Bawa Singh was the first witness examined by the petitioner. He did not support his case. He was not aware if Balbir Singh had purchased some site from Mohinder Kaur. He was crossexamined but refused to support the case of the petitioner. The petitioner indeed appeared as his own witness who admitted that he is not even a registered voter at Butala. The learned trial court rightly did not act upon his statement because he felt that very foundation of his case is shaken when petitioner was not a resident of that village. The occurrence had taken place in March, 1994 but there was inordinate delay in filing of the complaint i.e. on 10.6.1994. When the same is not explained, the complaint becomes suspicious. It was in these circumstances that it must be held that the trial court rightly recorded that if the evidence was unrebutted, still it would not result in conviction. There is no ground to interfere.

The revision petition thus being without merit must fail and is dismissed.